Sales - 1 & 2

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How are K terms determined under UCC?

missing - gap fillers

conflicting - 2-207 battle of the forms

How does 2-201 make it easier to enforce K under SoF?

minimizes how much writing is required

eliminates certain signature requirements

eliminates the No Enforceable K defense when K has already been performed

When is unconscionability determined?

at the time of formation of K

Do courts find unconscionability as a matter of law or fact?

law

If a court finds a K to be unconscionable, what are its options?

refuse to enforce the K

only enforce the non-unconscionable part of the K

limit the application of the unconscionable clause

Are monetary damages generally awarded for unconscionability?

no

What is the basic test for unconscionability?

whether the clause is one-sided in light of the general commercial background and commercial needs of the particular trade or case

What is the Lewis test for unconscionability?

Procedural?

Substantive?

Both?

What constitutes procedural unconscionability?

bargaining naughtiness or negotiation naughtiness

lack of meaningful choice

Will the court find unconscionability if there is a ton of procedural but the terms of the K are mostly fair?

No

What constitutes substantive unconscionability?

overly harsh one sided terms

inimical to public policy

no reasonable or subjective parity b/t values exchanged

Will the court find unconscionability if there is a ton of subjective but it is light on procedural?

No

Is there unconscionability if the "injured" party acted of his own free will rather than because of the unconscionability?

No - ppl have the right to make stupid Ks

What is the definition of GF?

honesty in fact and the observance of reasonable commercial standards in fair dealing

Every K or duty w/in the UCC imposes a duty of GF in its what?

enforcement or performance

Is GF required in negotiation?

no

Is there an independent CoA for failure to perform/enforce in GF?

No but constitutes breach and can sue under that

Is GF a question of law or fact?

fact

Are modifications to K subject to GF?

yes

What is the definition of a merchant?

person who deals in goods of the kind

person who by his occupation holds himself out has having knowledge or skill peculiar to the goods/practices involved

person to whom knowledge/skill is attributed by his employment

The sections in Art. 2 that apply to merchants only do so regardless of whether the M is acting in his M capacity (T/F)

false - they only apply when he is in his mercantile capacity

What is the definition of "goods"?

things that are movable at the time of identification to the K for sale

Goods must be both ______ and ________ before any interest can pass in them.

existing & identified

When does cancellation of a K occur?

when either party puts an end to the K for breach by the other

What is the effect of cancelling a K?

all obligations are discharged

cancelling party retains any remedy for breach of the whole K or the unperformed balance

What are the SoF requirements for the sale of goods under (2-201)?

the price is $500 or more

writing sufficient to indicate that K has been made

signed by the party against whom enforcement is sought

must specify a quantity

Against whom is a K which satisfies the SoF enforceable?

against any party which signed it

What is the M exception to the SoF?

if w/in a reasonable time a writing in confirmation of the K and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the SoF requirements against such party

If a party doesn't want the M exception to the SoF to apply, what must he do under 2-201(2)?

send written notice of objection to the contents in the written confirmation w/in 10 days of receipt

When can a K that doesn't satisfy the SoF still be enforceable under 2-201(3)?

(1) goods are specially manufactured for B and not suitable for sale to others

(2) party against whom enforcement is sought admits the K in pleadings, testimony, or otherwise in court

(3) payment has been made and accepted for goods or goods have been received and accepted

Must the writing under the SoF be delivered to anyone to be enforceable?

no

Under the PER (2-202) extrinsic evidence may not be used to do what if the parties intended the writing to be a final expression of their agreement?

contradict terms in the agreement

Under the PER (2-202) extrinsic evidence may be used to do what even if the parties intended the writing to be a final expression of their agreement?

explain or supplment terms in the agreement

Can CoPCoDUoT be used to explain or supplement a K even if the writing isn't ambiguous on its face under 2-202?

yes

B/t M under 2-207 additional terms are construed as what?

proposals for addtion to the K

b/t M, under 2-207 additional terms will become part of the K unless:

(1) offer expressly limits acceptance to the terms of the offer

(2) they materially alter it

(3) notification of objection has been given or is given w/in a reasonable time after notice of them is received

Does the PER apply to establishing the formation of an implied warranty?

no

Must there be consideration for an agreement modifying a K under 2-209?

no

Can a party who has made a waiver affecting a portion of the K retract that waiver under 2-209 and if so how?

yes by reaosnable notification received by the other party that strict performance will be required from then on out

No retraction if the other party has materially changed its position in reliance on the waiver

Will a K fail for indefiniteness if one or more terms are left open in it under 2-204?

not if the parties intended to make a K and there is a reasonably certain basis for giving an appropriate remedy